Mandatory retirement is the age at which persons who hold certain jobs or offices are required by industry custom or by law to leave their employment or retire. The normal age for retirement in Canada is 65.

With the repeal of mandatory retirement, federally regulated employers will no longer be able to terminate employees who have reached what was considered “the normal age of retirement” for workers in similar positions, unless there is a bona fide occupational requirement. Employees may now elect to leave their employment at a date and in the circumstances of their own choosing.

A bona fide occupational requirement (BFOR) occurs when the nature of a job and performance of essential duties require that an employee stop working at a specified age (which could be 65 or even younger). The Supreme Court of Canada has developed a three-step test for determining whether an occupational requirement that is discriminatory on its face is nevertheless a BFOR. In such cases, the employer must show that an age-based job requirement or qualification is a BFOR by establishing on a balance of probabilities:

• That the employer adopted the mandatory requirement for a purpose rationally connected to the performance of the job
• That the employer adopted the mandatory requirement in an honest and good faith belief that it was necessary to the fulfilment of a legitimate work-related purpose
• That the mandatory retirement requirement is reasonably necessary to the accomplishment of a legitimate work-related purpose

To show that the requirement is reasonably necessary, the employer must demonstrate that:

• The employee does not meet the job requirement or qualification, and/or
• The employee could not be accommodated without causing undue hardship to the employer

The above amendment comes into force one year after the day on which this Act receives royal assent, meaning December 15, 2012. This will provide employers with a one-year period to adjust to the changes and review their workplace policies, practices and collective agreements to ensure compliance.

All Canadian jurisdictions have now abolished mandatory retirement. New Brunswick has maintained a special provision in its Human Rights Act that establishes that age discrimination in employment is prohibited and there is no upper age limit to this protection. However, an employer is permitted to put in place a mandatory retirement plan if it is made in good faith and with a genuine purpose (by establishing a bona fide retirement or pension plan). This is allowed under the New Brunswick Human Rights Act subsections 3(5) and 3(6)(a).

As a general principle, older workers should be assessed on their own merits instead of presumed group characteristics, and offered the same opportunities as everyone else in hiring, training and promotion. They should be subjected to the same performance management practices as every other worker. Age, including assumptions based on stereotypes about age, should not be a factor in decisions about temporary layoffs or terminations.

In addition, anti-harassment and anti-discrimination policies and training, including complaint procedures, are valuable tools in promoting equity and diversity within an organization. Adoption, implementation and promotion of these policies can help to limit potential harm, and reduce the organization’s liability in the event of a complaint. These policies should explicitly address discrimination based on all grounds of the prohibited ground found under human rights legislation, including age.

Yosie Saint-Cyr
First Reference Human Resources and Compliance Managing Editor

© 2012 First Reference Inc. All Rights Reserved. | Permalink | Make a comment |

These days, it appears to be a fact of life that some employees surf the Internet for brief periods of time after working on tough assignments to give themselves a mental break before beginning the next task.

Contrary to what some may believe, associate professor Vivien K. G. Lim and graduate student Don J. Q. Chen of the National University of Singapore, found that employers can actually increase productivity by giving employees some time to surf the Internet during work hours. Those in the group that were given time to surf reported significantly lower levels of mental exhaustion and boredom, and significantly higher levels of psychological engagement. What’s more, the researchers linked browsing the Internet with more positive mental states, including excitement, interest, alertness and activity. This is because, according to the researchers, the brief moments of Internet browsing serves an important restorative function.

On the other hand, it was found that the more employers monitor for web browsing, the more employees do it, since employees view policies banning browsing as a form of mistrust in them. Further, interestingly, the acts of reading and answering emails were more associated with negative mental states including feeling distressed, fearful, hostile and jittery.

So what does this mean for employers?

Perhaps blanket bans are not the way to go; maybe the best way to deal with the issue of employee browsing is to create a more reasonable policy. For instance, a reasonable Internet browsing policy can balance the employer’s need for productivity and the employees’ need to briefly browse to enable mental breaks between complex tasks. This policy could take the form of allowing some time and visits to certain appropriate sites (such as selected websites offering news, social networking, online gaming, entertainment and hobby-related activities) with certain time restrictions.

Moreover, pursuant to the results of the study, it may be a good idea to limit the time spent on personal emails in order to maintain positive mental states in the workplace.

The comments following the linked article demonstrate both views on the issue. What do you think? Do you believe that web surfing provides a restorative function, or is this just an excuse to socialize and minimize the time spent working?

Christina Catenacci
First Reference Human Resources and Compliance Editor

© 2011 First Reference Inc. All Rights Reserved. | Permalink | Make a comment |

The case involves a high school computer science teacher who was arrested after police found nude photographs of a student (a minor) on the hard disk of a laptop owned by the school in his possession and use. He was charged under section 163.1 (4) and 342.1 (1) of the Criminal Code with possession of child pornography and fraudulently obtaining those photographs from the student’s computer.

This all came to light when a school computer technician who was working on the school server discovered a number of irregularities on the teacher’s computer and alerted the principal. The school board investigated and conducted a search of the employee’s hard drive and found a large number of pornographic images in the browser history. The board safeguarded the evidence on a disc and gave it to police officers who conducted further searches without a warrant or the teacher’s consent, claiming the computer was school property.

By acknowledging the employee’s expectation of privacy with regard to the contents of his laptop computer, the Court of Appeal found that the employee did have a reasonable expectation of privacy. They concluded that other teachers also used the school’s laptops for personal reasons, used individual passwords, that the school had no plans to use workplace policies to guide or restrict how staff used those computers.

Moreover, the Court stated:

Although this was a work computer owned by the school board and issued for employment purposes with access to the school network, the school board gave the teachers possession of the laptops, explicit permission to use the laptops for personal use and take the computers home … they employed passwords to exclude others … There was no clear and unambiguous policy to monitor, search or police the teachers’ use of their laptops.

However, the Court agreed that this expectation of privacy is not limitless. The employer has the duty to promote a safe learning environment and to this end, the computer technician acted within the scope of his functions by intercepting the illegal content and alerting the principal. Thus, the principal and the school board acted reasonably under the circumstances without violating the privacy rights of the individual under Section 8 of the Charter. On the other hand, the Court concluded that this was not the case for the police. In the Court’s opinion, the police violated Section 8 of the Charter, and under section 24 (2), the evidence obtained without a warrant must be discarded.

Many employment lawyers and privacy experts believe that this decision will have a significant impact for employers across the country, largely because the decision departs from the traditional tendency that ownership means control of workplace privacy. This is a further incentive for employers to ensure employees know what the rules are by implementing several very important policies related to privacy and computer, Internet and email use, as well as general conduct and behaviour in the workplace.

When implementing a policy governing the use of workplace computers, make sure to address monitoring, searching and policing, as well as permitted use. This will reinforce that employees should not have a reasonable expectation of privacy when using workplace computers.

To read more about this topic and obtain sample policies and procedures, consult the following First Reference Inc. publications:

• HRinfodesk
• The Human Resources Advisor
• Human Resources PolicyPro

Yosie Saint-Cyr
First Reference Human Resources and Employment Law Compliance Managing Editor

© 2011 First Reference Inc. All Rights Reserved. | Permalink | Make a comment |

All jurisdictions in Canada provide for a number of public (also called statutory or general holidays) holidays each year. Some are common to all jurisdictions; others are specific to individual provinces and territories.

Family Day is a public holiday under employment standards legislation, observed the third Monday in February every year in five jurisdictions in Canada: Ontario, Alberta, Saskatchewan, Manitoba and Prince Edward Island. It coincides with the US holiday President’s Day. Although this holiday is celebrated in five jurisdictions, generally speaking, an employee will be governed by the laws of the jurisdiction in which he or she works.

For example, an employee working in Alberta for a provincially regulated employer will be governed by the employment standards legislation in Alberta, regardless of whether the employer is based in Ontario, Alberta, Saskatchewan, Manitoba or Prince Edward Island.

Provincial employment standards legislation does not apply to employees of federally regulated businesses like banks, telecommunications companies, railways and airlines, or to federal civil servants. These employers are covered by the Canada Labour Code, which does not provide for family day. However, federally regulated employers can at their discretion add Family Day as a public holiday or floater day in workplace policies.

Employment standards legislation and regulations establish minimum standards of employment for most employers and employees working in a specific jurisdiction. Employers and employees (or their agents such as unions) may agree to more favourable (and different) terms in their conditions of employment or collective agreements.

To be eligible for a paid holiday, employees must ordinarily meet certain requirements, such as working a minimum number of hours or days in a given period prior to the holiday. The rules governing the treatment of public holidays differ between jurisdictions.

Below is an overview of legal requirements and issues surrounding Family Day in Alberta, Saskatchewan, Manitoba (known as Louis Riel Day), Ontario and Prince Edward Island (known as Islander Day).

Alberta
Family Day in Alberta was initiated to recognize the values of home and family. Alberta was the first province to establish Family Day as one a general holiday under the Employment Standards Code. Employees get a day off with regular pay. If the employee is required to work on the holiday, the employee must be paid regular pay plus a premium rate of pay (premium pay is 1½ times the employee’s regular rate of pay) for the hours worked on the holiday or regular wages, and get a substituted day off with pay at a later date.

To be eligible for public holiday pay, employees:

• Must have worked 30 days for their employer in the preceding 12 months
• Must work their scheduled shift before and after the holiday (unless employer consent is given)
• Must work on the general holiday if requested

The Alberta Employment, Immigration and Industry Ministry clarifies that under Alberta’s employment standards legislation, the following rules apply:

• If employees normally work Mondays and are given Family Day off, then they are entitled to their regular daily wage.
• If employees normally work Mondays and work Family Day, then they are entitled to their regular daily wage plus time-and-a-half for all hours worked. Alternatively, they are entitled to their regular wage for each hour worked on the holiday, plus another regular workday off with pay.
• If employees normally have Mondays off but they work on Family Day, then they are entitled to pay at a rate of time-and-a-half of their regular wage for all hours worked.
• If employees normally have Mondays off and do not work on Alberta Family Day, then they are not entitled to general holiday pay and are not entitled to an extra day off. However, employees may receive general holiday pay or an extra day off if it is a part of their employment contract or a part of a union agreement. Employees should check with their employer.

Note that some employees are exempt from general holidays and general holiday pay.

Saskatchewan

Saskatchewan became the second jurisdiction in Canada to enact Family Day, recognizing the values of home and family.

Under the Saskatchewan Labour Standards Act, an employee who normally works Mondays and is given Family Day off is entitled to public holiday pay. In Saskatchewan, it does not matter how recently employees were hired, or how many days they worked before they are entitled to public holidays. All employees (whether full-time or part-time, permanent or on a limited term contract) qualify for public holidays unless they work in jobs exempt from the public holiday provision of the Act, or work in businesses with special rules.

Most employees get 1/20 of their regular wages in the four weeks before a public holiday as public holiday pay, no matter what their days of work. The calculation includes all wages and holiday pay, but not overtime. Construction employees paid by the hour are entitled to 3.5 percent of all gross wages (exclusive of overtime and annual holiday pay) earned each calendar year as public holiday pay. Employees on a fixed salary that have the day off with pay will have received proper payment for the public holiday.

When employees work overtime during the week of a public holiday, they get overtime after eight hours per day and 32 hours per week. The 32 hours does not include any hours worked on the holiday.

If employees work on a holiday, except those engaged in the operation of a well-drilling rig, they are entitled to time and one half for all hours worked. This includes salaried employees and managers. The time-and-one-half rate is in addition to the normal day’s pay.

The Act does not apply to undertakings in which only members of the employer’s immediate family are employed, to sitters or to persons employed primarily in farming, ranching or market gardening, with the exception of egg hatcheries, greenhouses, nurseries, bush clearing operations and commercial hog barns. Teachers are also excluded from public holiday provisions.

Employers can apply for a permit from the Director of Labour Standards allowing the public holiday to be observed on another day. The director may order that the holiday be observed on another day if a majority of the employees agree. If the employees are represented by a trade union, the trade union and the employer may agree in writing to observe the public holiday on another day.

Manitoba
Manitoba became the third jurisdiction in Canada to enact Family Day. The government decided to be different by naming the holiday in honour of the Métis leader Louis Riel who led the Red River and North-West Rebellions in a fight to maintain aboriginal rights. Schools in the province were asked to submit one name that would be of relevance to Manitoba and reference citizenship, history, culture, the arts, sports or a significant individual. Eleven schools submitted the name “Louis Riel Day”.

According to the Employment Standards Branch of the Department of Labour and Immigration, general holiday pay (public holiday pay) can be calculated in two ways:

• If employees’ schedules are normally the same (their wages do not vary), they are paid their regular wages for the general holiday. For example: an employee may normally work eight hours a day, five days a week. The general holiday is a Monday and he/she did not work. General holiday pay for the day is eight hours at his/her regular wage.
• If an employee’s hours or wages change from day to day or pay period to pay period, the general holiday pay is five percent of the employee’s total wages in the four-week period immediately before the holiday. Overtime should not be included in this calculation. For example: a part-time employee may work about 25 hours each week at $10 per hour, but his/her schedule is different each day. In the four weeks before the holiday, he/she earned $1,000. General holiday pay is $1,000 times five percent, or $50.

In the construction industry, employees are entitled to general holiday pay, but it is calculated as a percentage of their regular wages. It is often paid on every cheque instead of on the holiday.

It does not matter how long an employee has worked for an employer to be entitled to a general holiday and general holiday pay.

All employees receive general holiday pay unless:

• They are absent from work on a general holiday that is normally a workday and they are expected to work
• They are absent from work, without permission, on their last scheduled workday before the holiday or their first scheduled workday after the holiday, unless they are absent because they are ill

Employees who work on a general holiday are normally entitled to 1½ times their regular rate of pay for the hours worked. In addition they also receive their general holiday pay.

In Manitoba, even when collective agreements do not mention Louis Riel Day, it is still a general holiday for all employees who work in a provincially regulated industry. Louis Riel Day is a minimum standard, and collective agreements cannot have provisions that offerless than any minimum standard.

The employer, with the written agreement of the majority of the employees or by their collective (union) agreement, can choose to substitute a different day in the place of a general holiday.

Ontario
Ontario became the fourth jurisdiction in Canada to enact Family Day, amid the most controversy, and surveys upon surveys. The holiday is in recognition of family. Ontarians have a day off to spend with their friends and families, and to enjoy the many great outdoor activities the province has to offer.

Many employers and business groups were concerned with the increased labour costs and lower productivity. Organizations have to pay time and a half for the holiday if they wish to meet customer demands, contributing to the increased labour costs. Some organizations will also lose revenue.

There has also been a lot of discussion and confusing information about an employer’s obligation to provide family day in February if they already provide a greater benefit, meaning if they already provide more than nine paid public holidays a year. The principle is found in the Employment Standards Act: provisions of an employment contract, including a collective agreement, prevail if they provide a greater benefit to an employee than the employment standard.

Ontario’s Ministry of Labour recently clarified the issue by indicating that if an employer provides 10 or more paid holidays, employees may not automatically be entitled to Family Day. Employees should speak to their employer or union official to determine whether they will have Family Day off. More information on the issue of greater benefit and legal requirements can be found on HRinfodesk (login required).

Family Day must be treated like any other public holiday. Generally, if a public holiday falls on a day that would ordinarily be a working day, the employee is entitled to the day off work and to be paid public holiday pay. However, the employee would not be entitled if he or she failed, without reasonable cause, to work all of his or her last regularly scheduled day of work before Family Day or all of his or her first regularly scheduled day of work after Family Day.

It does not matter how recently the employees were hired, or how many days they worked before the public holiday (although that can affect the amount of their public holiday pay).

Qualified employees have a right to refuse to work on a public holiday, and to take the day off with pay. However, if an employee who qualifies agrees in writing to work on the holiday, the employee is either:

• Entitled to wages at his or her regular rate for all hours worked on the public holiday plus another regular working day off with public holiday pay (this substitute day off must be scheduled for no later than three months after the public holiday or, if the employee has agreed in writing, up to 12 months after the public holiday), or
• Entitled to public holiday pay for the public holiday plus premium pay (1½ times the employee’s regular rate) for all hours worked on the public holiday. In this case, the employee is not given a substitute day off.

There are three categories of employees who may not have the right to the day off. These include employees who:

• Are not covered by Ontario’s Employment Standards Act, (i.e., employees who work in federally regulated workplaces such as banks, telecommunications companies, railways and airlines, or who are federal civil servants).
• Are covered by the ESA, but fall within a special rule or exemption involving the ESA’s public holiday provisions. For a complete list of employees who fall under a special rule or exemption, consult the HRinfodesk Quick Reference Chart, Exemptions from Certain Parts of the Employment Standards Act and Special Rules.
• Those whose collective agreement or employment contract is more generous to them in relation to public holidays than the public holiday provisions in the ESA (see above explanation).

Generally, employees who don’t qualify for public holiday entitlements must work on Family Day if asked by their employer. Most non-qualified employees are entitled to be paid 1½ times their regular rate of pay for each hour worked on Family Day. There is no substitute day off. If a non-qualified employee is not asked to work on Family Day, he or she gets the day off with no pay.

Family Day was also made a public holiday under the Ontario Retail Business Holidays Act (RBHA). Most retail outlets must close on a day that is a holiday under that act. The RBHA provides certain municipalities the right to have their own bylaws.

Exempt from the act are book or magazine stores under 2,400 square feet with a maximum of three employees, pharmacies under 7,500 square feet, flower shops and gas stations. Stores may also be open on these holidays if exempted under specific municipal bylaws for the development or maintenance of tourism. Any questions about tourism designations or local hours of retail operation should be directed to the municipal clerk’s office in your municipality.

The City of Toronto Act, passed in January 2007, exempted the City of Toronto from the Retail Business Holidays Act, giving the city the ability to set its own rules regarding retail business holiday shopping. You should be aware that retailers within the municipal boundaries of the City of Toronto are permitted to open on Family Day.

Prince Edward Island
Prince Edward Island is the latest province to enact family day, under the name of Islander Day.

Employers are required to provide eligible employees who worked for at least 30 calendar days in the 12 calendar months before the public holiday with time off work with regular pay, or average daily wages (when wages vary), exclusive of overtime.

In order to have a day off with pay for Islander Day, an employee must also:

• Have earned pay on at least 15 of the 30 calendar days before the holiday
• Have worked his/her last scheduled shift before the holiday and his/her first scheduled shift after the holiday.

An employee who qualifies for the paid holiday but who is not scheduled to work on the paid holiday is entitled to another day off with pay.

Note that some employees are exempt from general holidays and general holiday pay. Some businesses like restaurants, convenience stores and tourist attractions remain open.

An employee who works on a holiday and who is qualified to be paid holiday pay is entitled to receive the following:

• The amount the employee would have normally received for that day; plus,
• One and one-half times the employee’s regular rate of wages for the number of hours worked on that holiday;

or

• The regular rate of wages for the number of hours worked on that day; plus,
• Another day off with pay for the equivalent hours worked.

Note: an employee who has an arrangement with their employer where they may elect to either work or not work when requested does not qualify.

Advantages of providing Family Day
Family day provides a welcome break for employees during one of the coldest month of the year, between New Year’s Day and Easter.

It is a relatively easy and cost-efficient way for workplaces to become more family-friendly by allowing employees the use of their basic statutory holidays and offering additional holidays. These holidays provide employees with an opportunity to spend more time with their families and to deal with household responsibilities.

Several political parties and groups are calling for the federal government to make this a national holiday across Canada.

British Columbia and New Brunswick are two other provinces considering adding Family Day as a public holiday.

Yosie Saint-Cyr
First Reference Human Resources and Compliance Managing Editor

© 2011 First Reference Inc. All Rights Reserved. | Permalink | Make a comment |

The best protection against such harm to the business is to have all senior employees and sales personnel sign employment contracts that include either non-solicitation or non-competition covenants. The question of which type of covenant to include will be determined by the nature of the business and the information confidential to that business. Employers can also institute standard employment policies to which employees agree when commencing employment which deals with the question of improper competition.

Now, many companies have such contracts or employment policies. In determining whether your business would benefit from such contracts and policies, ask yourself these questions:

• How often has such a mass departure taken place in your industry?
• What has been the impact on the profitability of the company?
• Did the business have any non-competition or non-solicitation covenants in place?
• Did it take steps to enforce these covenants?

These are issues that management should address with the assistance of legal advice, to be sure of successful implementation of enforceable employment contracts and policies.

Earl Altman
Garfinkle, Biderman LLP

© 2010 First Reference Inc. All Rights Reserved. | Permalink | One comment |

And fraud is on the rise, as organizations cut back on staff, and their internal controls slacken as a result. As the paper points out, however, the monetary loss is just the beginning of the problem: “Failure to crack down on this unethical—and indeed criminal—behaviour blurs the line between right and wrong. It creates a culture of entitlement that can extend across the business. And it can open the door to more significant corporate theft.”

The paper goes on to highlight the vital role that effective, well enforced policies play in keeping a lid on expense fraud. Click here for a copy of this thought-provoking white paper.

The upcoming release of Finance and Accounting PolicyPro, includes updates to policies related to expense authorization, petty cash, company credit cards, expense advances and allowances, and travel guidelines.

Colin Braithwaite
First Reference Internal Controls Managing Editor

© 2010 First Reference Inc. All Rights Reserved. | Permalink | Make a comment |

Last week, I wrote about a case in which the owner of a trucking company repeatedly harassed his South Asian employees with racist comments. When one employee confronted the boss, he said it was his company, implying that he could say and do what he wanted.

Also last week, I read a news story about Asian-Canadian anglers facing racially motivated attacks on Central Ontario’s lakes and rivers. The Community and Race Relations Committee of Peterborough even produced a public service announcement, indicating just how troublesome the problem has become.

And recently, Yosie (re-)tweeted about black farmers in the United States who won a $1.25 billion settlement from the government for systemic discrimination that prevented them from getting bank loans or forced them to wait for excessive periods to receive loans.

These stories show that not only does racism still exist at the personal and systemic levels in North America, but it also cuts across ethnic lines: Asian-Canadians, South Asian Canadians, African-Americans/Canadians, all “hyphenated Canadians”—we’ve got a long way to go before we are all just “Canadians” (or “Americans”). Still, I think I can fairly say that we are also progressing toward that goal, and the many immigrants to Canada who are proud of their adopted home country are helping us progress.

Take Cheryl Khan, the woman who stood up to her boss at the trucking company—the very owner, who felt he could discriminate with impunity, at least in speech. I don’t know if she is a native-born Canadian, but somewhere along the line, her family immigrated to Canada, and now, she is standing up for the Canada that could be, the country that people around the world look at as a beacon of freedom and peace and equality.

I have a point, which is that we all have a part to play in eliminating racism from Canadian society, and the workplace is a good place to start, since most of us will find ourselves in one for a large portion of our lives. Also, workplaces are subject to more stringent laws and regulations than individuals when it comes to discrimination. An individual may hold whatever beliefs she or he wants—in fact, these beliefs are protected by law—but an organization must be officially inclusive, with specific limited exceptions (e.g., bona fide occupational requirements and religious exclusions).

Let’s take a closer look at the lessons of the Khan case.

According to several employees, the employer used racist terms like “Paki” and “nigger” regularly, even daily, which contributed to a poisonous work environment. This sort of behaviour clearly goes against employees’ right to a workplace that is free of harassment and their right to equal treatment. (You’ll have to look at the human rights legislation in your jurisdiction for the specific wording, but the principle is the same.) In other words, this employer was wrong, and the Ontario Human Rights Tribunal ordered him to pay a large fine to Khan. The tribunal also ordered the employer to undergo sensitivity training and to implement an anti-harassment policy.

The tribunal found that the employer discriminated against Khan (based on her race) in both her employment and her termination. In testimony, the boss claimed that he fired Khan over her substandard performance and because she spent time on Facebook at work. The tribunal might have accepted these arguments if Khan was still on a probation period and if she wasn’t fired against the backdrop of discrimination charges, but under usual employment circumstances, alleged poor performance and undesirable conduct do not add up to just cause for termination without a series of warnings, ideally supported by consistently applied policies on discipline, conduct, social networking, and any other relevant issues. In other words, the employer was probably lying, and even if he wasn’t, his arguments for termination were poor, and likely wouldn’t have swayed the tribunal in his favour.

What other lessons might employers and employees learn from this and similar cases?

Adam Gorley
First Reference Human Resources and Compliance Assistant Editor

© 2010 First Reference Inc. All Rights Reserved. | Permalink | Make a comment |

Workplace violence and harassment made significant news in 2009, particularly in Ontario and Newfoundland and Labrador, where the governments amended their occupational health and safety laws or regulation to protect workers who face violence or harassment in the workplace. Ontario introduced and passed into law its Bill 168, Occupational Health and Safety Amendment Act (Violence and Harassment in the Workplace), and Newfoundland and Labrador amended their Occupational Health and Safety Regulations. Ontario’s law covers both violence and harassment, while Newfoundland and Labrador’s amended regulations only cover workplace violence. (Ontario’s Bill 168 comes into effect June 15, 2010.)

Of course, with new OHS laws come new or modified responsibilities for employers and employees. In this post, I want to look at a modified one: employees’ right to refuse unsafe work. For a detailed look at what to do in the event of an employee work refusal, see the article, Workplace violence and work refusals: what do you need to know? on HRinfodesk.com.

In general, OHS legislation or regulations across the country permit workers to refuse to work or perform specific duties when they have reason to believe that the work conditions are unsafe. How should employers and employees interpret this in light of workplace violence and harassment concerns?

Obviously, violence and harassment could make a worker feel unsafe, but are they dangerous enough to initiate a work refusal? With respect to harassment, the answer is a pretty clear “no”, but for violence the answer is not so straightforward. Some jurisdictions have said ”yes”, while others have said nothing. There’s also the question of imminent danger and physical hazard vs. the threat of danger (e.g., violence or bullying): are both of these dangers justifications to refuse work?

In Manitoba, Saskatchewan, the federal jurisdiction and Ontario (as of June 15), the law makes it clear that the threat of violence is enough to trigger a work refusal. As for the remaining provinces and the territories, OHS lawyer Cheryl Edwards of law firm Heenan Blaikie says, “Historically, in jurisdictions where no definition of workplace violence exists, or definitions do not include non-physical violence, tribunals have ruled that OHSA statutes are not sufficiently elastic to encompass non-physical violence or harassment.” Is that definitive? Unfortunately not.

Of course, that’s far from the only issue to arise from the right to refuse work and workplace violence. Others include discipline and dismissal, how to investigate, minimizing operational disruptions, protecting workers’ privacy, replacement workers, resolving problems, and more. Let’s take a look at some of these.

• Should employers discipline employees for refusing to work? Employers may not discriminate against employees who refuse unsafe work. This means that you cannot threaten, dismiss, suspend, demote or otherwise penalize an employee simply because of a work refusal. If it turns out that an employee has refused work without cause, the employer may have justification to discipline. How an employer acts in this situation should be guided by a policy stating what types of discipline it may use in the event of frivolous claims of danger.

• How can employers respect the privacy of employees involved in incidents of violence or harassment? This topic deserves more than a paragraph, and you’ll be reading more about it on the First Reference blog soon. But think about this: if an employee is exhibiting a lot of aggressive, harassing or even violent behaviour, and a co-worker refuses to work because of it, it’s easy to imagine such information spreading around the workplace in no time. If the employer doesn’t prevent the information from getting out, it could face a complaint of breach of privacy from the allegedly violent worker. And what if the threat of violence or harassment applied only to one particular worker? How would you find out? How would you protect others? Is danger to a single person sufficient to refuse work, or should a danger apply to anyone who is in the same position?

• Can employers replace a refusing worker while an investigation is in progress? The short answer is “yes”, but there are conditions. And it’s not clear how a work refusal claim of violence or harassment would affect employers’ ability to replace a worker. In a case of alleged violence or harassment, the employer could use its discretion to decide whether another worker would also face imminent danger performing the refused work; but that’s a decision it would probably be best to make in conjunction with the workplace health and safety representative and a union representative (if present), and possibly even a lawyer.

Many of these issues are related, too. For example, in order to minimize operational disruptions, you would have to employ replacement workers and limit the spread of information about the work refusal so that other workers don’t waste time gossiping. And in order to use replacement workers and maintain privacy, you would have to investigate quickly and discreetly.

As I mentioned, there are many more issues and not enough time to discuss them all. Regardless, we’ll be taking a lot of time in the coming weeks to look at the topic of workplace violence and harassment and all that entails. If it all sounds like too much to think about, it’s important to remember that compliance isn’t simply a feel-good exercise or a way to appease the government. Compliance makes good business sense. In other words, by understanding and complying with local laws and regulations, not only will you avoid legal complications, but you can make your operations more efficient, improve employee relations and build your reputation and brand. It might only take an internal policy, a training program and consistent follow-through—all things that well run businesses already have or do.

Remember to look at Workplace violence and work refusals: what do you need to know? on HRinfodesk.com, for jurisdiction-specific details on work refusals in the context of workplace violence.

Now, let us know what you think about work refusals and how they might be complicated by workplace violence and harassment.

Adam Gorley
First Reference Human Resources and Compliance Assistant Editor

© 2010 First Reference Inc. All Rights Reserved. | Permalink | 2 comments |